NYU Law Review, Vol. 72, No. 1 (1997)
94 Pages Posted: 3 Sep 1997 Last revised: 27 Apr 2012
Date Written: April 26, 2012
In this article we examine the structure of the legal regime that should govern a corporation's liability for crimes and intentional torts committed by its managers and other employees. This issue has gained much salience recently as reform initiatives increasingly replace strict liability with nuanced regimes that mitigate liability when firms undertake to monitor employees, and to investigate and report wrongdoing. In addition to inducing optimal activity levels, this article identifies four enforcement functions that corporate liability must often discharge: (1) inducing firms to sanction culpable agents; (2) inducing firms to thwart wrongdoing through preventive technologies and procedures; (3) inducing optimal policing measures such as monitoring, investigating, and reporting misconduct; and (4) and ensuring that employees find credible threats by firms to implement these policing measures. Our analysis reveals that neither traditional strict liability nor duty-based liability can induce firms to monitor, investigate or report wrongdoing optimally. We recommend that the law impose a mixed regime on firms instead. In the special case where firms can always credibly threaten to police their employees, a kind of sliding -- or adjusted -- form of strict liability appears to be the optimal mixed regime. In the general case, however, the optimal mixed regime is a form of composite liability, which holds firms strictly liable for all their agents' wrongs but substantially reduces this liability whenever firms satisfy their monitoring, investigation, and reporting duties. Employing our analysis, we analyze recent liability reform efforts, including the United States Sentencing Guidelines Governing the Sentencing of Organizations, prosecution guidelines for environmental crimes, and environmental audit privileges. We show that although the Guidelines are a step in the right direction, they do not provide firms with optimal incentives to police their employees. In addition, we are critical of the Environmental Protection Agency's new guidelines governing prosecutions of environmental crimes for similar reasons. Finally, we demonstrate that a composite liability regime is likely to be superior to the solution favored by some states of combining an environmental audit privilege with traditional vicarious strict liability for environmental wrongdoing.
JEL Classification: G38, K22
Suggested Citation: Suggested Citation
Arlen, Jennifer and Kraakman, Reinier, Controlling Corporate Misconduct: An Analysis of Corporate Liability Regimes (April 26, 2012). NYU Law Review, Vol. 72, No. 1 (1997); NYU Law and Economics Research Paper. Available at SSRN: https://ssrn.com/abstract=11341